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Updated legislative scenarios for health reform

(Update: My brain was stuck in 59-Senate-Democrats mode, and was assuming that Leader Reid would need Senator Snowe’s vote to reach 60. That is now incorrect, assuming Senator Byrd is healthy enough to vote. I have edited this post accordingly.)

Here are my updated legislative projections for health reform:

Cut a bipartisan deal on a comprehensive bill with 3 Senate Republicans, leading to a law this year; (0.1% chance, down from 5%)

Pass a partisan comprehensive bill through the regular Senate process with 6059 Senate Democrats + one Republican, leading to a law this year; (20% chance, down from 25%)

Pass a partisan comprehensive bill through the reconciliation process with 51 of 59 Senate Democrats, leading to a law this year; (50% chance, up from 25%)

Fall back to a much more limited bill that becomes law this year; (24.9% chance, down from 50%)

No bill becomes law this year. (steady at 5% chance)

I last updated my legislative scenarios more than three weeks ago, on September 3rd. Since then we have had the President’s speech, a lot of behind-the-scenes work on Congressional Democrats by the White House, and the beginning of the Senate Finance Committee markup. I think we also know at least the partial strategy of Democratic leaders. They will pursue path 2 if they can. If they can’t hold 60 votes, they will blame Republicans for failure and shift to path 3. I project a high probability of this latter scenario, higher than most experts I know.

Careful readers will see that my projected probability of success for a comprehensive bill (paths 1 + 2 + 3) has increased from 55% on September 3rd, to 70.1% today. In this respect the President’s speech, and more importantly the behind-the-scenes work he, his White House staff, and Congressional Democratic leaders have been doing, are working. I sense a much greater degree of partisan unity among Democrats, creating flexibility on policy and therefore legislative bargaining room as the leaders try to craft a bill. Congressional Democrats appear to agree that they need to agree. They are, however, still not sure about what they’re going to agree. But at least in public, they are taking much more constructive tones toward their inter-party disputes. This increases their chances of success.

Democratic Congressional leaders have chosen path 2. Leader Reid can set up the process to have a test vote at an early stage of the Senate floor procedure. (For the procedural nerds, I will guess there will be a vote on cloture on the motion to proceed to a House-passed tax bill now on the calendar, maybe the week of October 5th.) If Leader Reid gets 60 votes for that test vote, then he will know he has a high probability of succeeding on that path, and they will charge forward.

If he cannot hold 60 votes for that early test vote, either because Senator Byrd is too ill to vote (he says he is not), because Senator Snowe is not onboard, or because some of the other 59 Democratic Senators disagree on the substance, then path 2 won’t work. Leader Reid has a tactical advantage in that he will likely know this in advance of the test vote, and the vote is at the beginning of the regular order process. If he knows he will lose the key test vote, then I expect he will hold the vote, fail to get 60, blame Republicans for the failure, and immediately start down path 3, claiming that Republicans forced him to do so.

I have surveyed some experts on these probabilities. Compared to three weeks ago, all of them have increased their predictions of Democratic success on a comprehensive bill. Most, however, project a higher probability of Democratic success through path 2 rather than path 3. They are implicitly assuming that the Leaders’ chosen path will be successful, and that Leader Reid can hold 60 votes.

I am guessing there is much greater Democratic disunity than we have seen this week at the Senate Finance Committee markup. When a markup gets partisan, as it has in this case, Members tend to retreat to their respective partisan corners and it’s easier for the majority to hold all its votes. Near-unified and aggressive Republican opposition makes it slightly easier for Chairman Baucus (reinforced by Leader Reid and the White House) to whip nervous committee Democrats into line. It also increases the pressure on those who don’t like the substance (like Senator Rockefeller) not to press too hard, for fear of killing the bill entirely.

The real action is not taking place at markup. It is taking place behind closed doors, away from the markup. When the President chose a partisan path in his speech, he pushed the real debate behind closed doors. This is now a debate among House and Senate Democrats. Republicans can influence that debate only to the extent they can change the decision-making process of Democratic members, since everyone assumes that almost every Republican will vote no. If Senate Democrats can extend the consensus that is apparent at the Senate Finance Committee markup to all 60 59 members of their Caucus, and if they can get and hold Senator Snowe, then I’m wrong, my expert colleagues are right, and the Leaders’ preferred regular order path 2 will be successful.

If, however, one or more Senate Democrats looks at the substance of the committee-reported bill and says, “I cannot support that,” and if they cannot satisfy that Senator’s concerns, then Leader Reid will be forced onto path 3. There will be tremendous peer pressure on those wayward Senators to ally with the team, and if Leader Reid had 2-3 votes of wiggle room I would have an entirely different prediction. But he has to hold everybody, and that’s hard to do.

I therefore think they will try path 2, probably fail, and end up on path 3, the reconciliation path. You can see I am projecting a 71% chance that Leader Reid cannot hold his caucus and Sen. Snowe together (50% divided by 70% equals 71.4%). Senate Republicans can increase this probability if their substantive arguments against the bill are effective at making individual Senate Democrats uncomfortable.

This guess depends heavily on how Senators make their decisions. The more they care about the substance of the bill, the substantive critiques from Republicans and the press, the bill’s low popularity, and negative pressure from constituents back home, then the greater the probability that I’m right and they end up on path 3. The more they focus on the importance of sticking together as a party and supporting the President, the more likely their chosen path 2 will succeed.

When I worked for Senate Majority Leader Trent Lott, I remember many closed-door meetings of the Senate Republican Leadership where the leaders had strong disagreements they could not immediately resolve. They would argue, shout, and pound the table, and remain at loggerheads. In almost all cases, as the meeting ended they would agree on a short common message to use with the press to indicate that all was well and Republicans were unified. They would do this to buy themselves time to work out their differences in private. The press, public, and their legislative opponents would see a unified partisan front which often disguised enormous intra-party struggles. It took me a while to recognize that when I saw the Democratic leaders showing a unified front to the press, they might be doing exactly the same thing.